Citation Nr: 9910031
Decision Date: 04/09/99 Archive Date: 04/29/99
DOCKET NO. 96-26 044 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to service connection for a total rating for
compensation purposes based on individual unemployability.
REPRESENTATION
Appellant represented by: Richard A. LaPointe, Attorney-
at-law
ATTORNEY FOR THE BOARD
M. C. Graham, Associate Counsel
INTRODUCTION
The appellant served on active duty from December 1968 to
July 1970.
The instant appeal arose from a June 1996 rating decision of
the Department of Veterans Affairs (VA) Regional Office (RO),
in Jackson, Mississippi, which denied a claim for individual
unemployability. This case was remanded by the Board of
Veterans' Appeals (Board) in December 1997 and November 1998
for further development.
The appellant, in various correspondence with the RO, seems
to have raised claims for service connection for an acquired
psychiatric disorder and for back pain. In a February 1998
written statement he asserted that he has a psychiatric
disorder which is aggravated by chronic pain resulting in
part from his service-connected disorders. In a February
1999 written statement he asserted that his service-connected
left knee disorder has resulted in back pain. The United
States Court of Appeals for Veterans Claims (known as the
United States Court of Veterans Appeals prior to March 1,
1999) (hereinafter, "the Court"). has held that service
connection is warranted where the evidence shows that a
chronic disability or disorder has been caused or aggravated
by an already service-connected disability. 38 C.F.R.
§ 3.310 (1998); Allen v. Brown, 7 Vet.App. 439 (1995). Since
these issues have not been developed by the RO subsequent to
these recent claims, they are referred to the RO for
appropriate action. These issues are not inextricably
intertwined with the issue on appeal. Kellar v. Brown, 6
Vet.App. 157 (1994).
FINDINGS OF FACT
1. The veteran reports that he was last employed in 1987 and
quit his job as a counselor because he was afraid he would
harm one of his clients.
2. The appellant is currently service-connected for
residuals of left knee strain with lateral instability,
status postoperative shaving with lateral retinacular
release, evaluated as 20 percent disabling; residuals of a
right ankle injury, evaluated as 20 percent disabling;
traumatic arthritis of the left knee, evaluated as 10 percent
disabling; amputation of the right little toe with retained
foreign body and painful, tender scar, evaluated as 10
percent disabling; tinnitus, evaluated as 10 percent
disabling; and pseudofolliculitis barbae and hearing loss,
both rated noncompensably disabling; with a combined
disability rating of 60 percent.
3. The appellant's service-connected disabilities do not
preclude him from securing or following a substantially
gainful occupation.
CONCLUSION OF LAW
The criteria for a total schedular rating for compensation
purposes based on the inability to secure or follow a
substantially gainful occupation have not been met.
38 U.S.C.A. §§ 5107, 7104 (West 1991); 38 C.F.R. § 4.16
(1998).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
The appellant is seeking a total disability rating based on
individual unemployability due to his service-connected
disabilities. His service-connected disabilities are:
residuals of left knee strain with lateral instability,
status postoperative shaving with lateral retinacular
release, evaluated as 20 percent disabling; traumatic
arthritis of the left knee, evaluated as 10 percent
disabling; residuals of a right ankle injury, evaluated as 20
percent disabling; amputation of the right little toe with
retained foreign body and painful, tender scar, evaluated as
10 percent disabling; tinnitus, evaluated as 10 percent
disabling; and pseudofolliculitis barbae and hearing loss,
both rated noncompensably disabling; with a combined
disability rating of 60 percent.
The Board, in reaching its decision in accordance with the
provisions of 38 U.S.C.A. § 7104, has reviewed and considered
all relevant evidence and material of record incorporated in
the appellant's voluminous claims folders.
Total ratings for compensation may be assigned where the
schedular rating is less than total, when it is found that
the disabled person is unable to secure or follow a
substantially gainful occupation. 38 C.F.R. § 3.340(a)
(1998). The Board notes that the regulations for total
rating claims were amended in November 1996, during the
pendency of this claim. However, 38 C.F.R. § 4.16(a)
remained unchanged and states that "[t]otal disability
ratings for compensation may be assigned, where the scheduler
rating is less than total, when the disabled person is, in
the judgment of the rating agency, unable to secure or follow
a substantially gainful occupation as a result of service
connected disabilities: Provided That . . . if there are two
or more disabilities, there shall be at least one disability
ratable at 40 percent or more, and sufficient additional
disability to bring the combined rating to 70 percent or
more." 38 C.F.R. § 4.16(a) (1998). The regulations further
clarify that disabilities affecting a single body system are
considered one 40 percent disability in combination. Id.
In Van Hoose v. Brown, 4 Vet. App. 361 (1993), the Court of
Veteran's Appeals noted that:
For a veteran to prevail on a claim based
on unemployability, it is necessary that
the record reflect some factor which
takes the claimant's case outside the
norm of such veteran. See 38 C.F.R.
§§ 4.1, 4.15 (1992). The sole fact that
a claimant is unemployed is not enough.
A high rating in itself is recognition
that the impairment makes it difficult to
obtain and keep employment. The question
is whether the veteran is capable of
performing the physical and mental acts
required by employment, not whether the
veteran can find employment. See
38 C.F.R. § 4.16(a) (1992).
Id. at 363.
In this case, the Board notes that the schedular criteria
pursuant to 38 C.F.R. § 4.16(a), have not been met. The
veteran has various service-connected orthopedic
disabilities, namely his left knee, right ankle, and right
little toe disorders. These service-connected disabilities
affect a single body system and, in combination, are the
equivalent of one disability ratable at 40 percent or more.
However, as his combined disability rating is only 60
percent, not the required 70 percent or more, he does not
meet the criteria of 38 C.F.R. § 4.16(a).
Consideration has also been given to the potential
application of the extraschedular evaluation provisions of
38 C.F.R. § 4.16(b) as the veteran fails to meet the
percentage standards outlined above yet has asserted that he
is unemployable by reason of his service-connected
disabilities. The Board finds that the RO was not in error
when it did not submit the veteran's case to the Director of
the Compensation and Pension Service for extra-schedular
consideration as the Board does not find that he is
unemployable as a result of his service-connected
disabilities.
According to the evidence of record, the veteran is 50 years
old, unemployed, and last worked as a counselor in 1987. A
February 25, 1987, written statement from his VA psychologist
noted that the veteran had retrospectively reported that he
quit his job as a school counselor because he was afraid he
would lose control and harm one of his clients. The
psychologist stated his opinion that "this type of work is
not appropriate for this individual at this time."
Significantly, the psychologist did not state that the
veteran was totally unemployable. The veteran completed high
school and two years of college and had additional education
or training in law enforcement, corrections, security, auto
and diesel mechanics, and counseling youth.
A review of the evidence shows that the veteran has a number
of disabling medical problems which are non-service
connected. Non-service connected disorders include
degenerative arthritis of the right hip, degenerative changes
of the left ankle, degenerative changes of the left hip,
degenerative changes of both feet, degenerative changes of
the right ankle, degenerative changes of the right knee,
anxiety reaction, passive aggressive and narcissistic
personality traits, ear infections, post-traumatic stress
disorder (PTSD), skin conditions of the back, elbows, hands,
and feet, and left ear pain. The Board notes that as the
veteran is not service-connected for these disorders, they
cannot be the basis for a finding of individual
unemployability.
In weighing the evidence of record, the undersigned concludes
that the weight of the evidence is against the appellant's
claim for a total rating for compensation purposes based upon
individual unemployability. In reaching this conclusion, the
Board has considered the probative value of the evidence of
record and determined that the objective evidence establishes
that the appellant is not unemployable by reason of his
service-connected disabilities alone, and weighs against his
contentions of unemployability.
The evidence of record does not reveal that the veteran is
unemployable solely due to his service-connected
disabilities. In a May 1997 VA treatment record the veteran
stated that he was unemployable due to "right hip, knee,
ankle, and foot pain secondary to favoring his left leg, DJD
[degenerative joint disease], tinnitus, and PTSD." As noted
above, of the disorders he listed, he is only service-
connected for a right ankle disorder unrelated to his left
knee disorder and tinnitus. Service-connection has been
denied for right lower extremity disorders claimed as
secondary to his service-connected left knee disability, and
service connection has also been denied for PTSD.
In fact, there is nothing in the objective evidence of record
which shows that he is unemployable. An October 1993 VA
treatment record noted that the veteran had undergone a left
knee arthroscopy; however, the physician noted that the
veteran would be able to return to work in November 1993. A
written statement from the veteran dated November 15, 1993,
indicated that he was employed as he stated, "my job does
not have sick leave . . . ." Recent VA treatment records,
dated from July 1995 to November 1998, were associated with
the claims folder pursuant to the Board's November 1998
remand. These records do not show any medical determination
that the veteran is unemployable. Thus, the preponderance of
the evidence of record is against the veteran's claim.
The Board has little to add to what has already been stated
in recent, prior Board decisions concerning the appellant's
service-connected disabilities. There is at most moderate
disability associated with his right ankle and left knee
disorders. A November 1998 VA treatment record noted that
the veteran's left knee disorder was stable and that surgery
had been deferred. The recent medical evidence does not show
treatment for the service-connected right ankle disorder. In
addition, recent medical evidence shows that the veteran's
hearing, tinnitus, and right little toe disorders are
manifested by no more than mild symptoms. In June 1997 the
veteran refused an audiological evaluation; however, his
hearing was found to have undergone no significant change.
Likewise, a December 1996 VA audiological evaluation found
the veteran's hearing loss was stable, and a June 1996 ear
examination found no change in the veteran's service-
connected tinnitus. Recent medical records do not show that
the veteran has been treated for pseudofolliculitis barbae.
For these reasons, entitlement to a total rating for
compensation purposes based upon individual unemployability
has not been shown.
The evidence in this case is not so evenly balanced so as to
allow application of the benefit of the doubt rule as
required pursuant to the provisions of 38 U.S.C.A. § 5107(b).
In weighing the evidence of record, the undersigned concludes
that, while interference with employment is acknowledged by
the 60 percent combined disability evaluation for his
service-connected disorders, the weight of the evidence is
against the appellant's claim to a total rating for
compensation purposes based upon individual unemployability
in view of the lack of objective evidence, including medical
evidence to establish that the appellant is, in fact,
unemployable by reason of his service-connected disabilities.
When viewed in light of the fact that the appellant does not
meet the schedular criteria and is not unemployable due to
his service-connected disabilities as noted above,
entitlement to a total rating for compensation purposes based
upon individual unemployability has not been shown.
Accordingly, a total rating based on individual
unemployability due to the veteran's service-connected
disorders is denied.
ORDER
A claim for a total rating for compensation purposes based on
individual unemployability due to service-connected
disabilities is denied.
C. P. RUSSELL
Member, Board of Veterans' Appeals